[00:00:02] Speaker 03:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:04] Speaker 03:
We'll hear the cases in the order of the day sheet.

[00:00:07] Speaker 03:
The first case is Jesse M. Skinner versus R. Lee at the United States Attorney's Office.

[00:00:37] Speaker 00:
Morning, Your Honors.

[00:00:40] Speaker 00:
Morning.

[00:00:42] Speaker 00:
May it please the Court, Simon Zen representing Mr. Jesse Skinner.

[00:00:46] Speaker 00:
With the Court's permission, I'd like to reserve two minutes for rebuttal and I can watch my own clock.

[00:00:51] Speaker 03:
Okay, thank you.

[00:00:53] Speaker 00:
The panel should vote to call this case on bunk to reconsider this Court's erroneous decision in chambers.

[00:00:59] Speaker 00:
ER 103 and 97 show that officers called Mr. Skinner a snitch, threatened him repeatedly, and actually carried out their threats by getting other inmates to viciously assault him using weapons.

[00:01:12] Speaker 00:
These intentional and unprovoked acts of violence easily stay Eighth Amendment, excessive force claims, and they are not meaningfully different from the prisoner mistreatment claim in Carlson.

[00:01:22] Speaker 00:
Chambers went out of its way and foreclosed all Eighth Amendment excessive force claims by misapplying

[00:01:28] Speaker 00:
The Abbasi factors as a result chambers go ahead finish your question for chambers is now in direct conflict with fields Read and all of the other courts that have allowed these claims for decades My question is did he exhaust his?

[00:01:45] Speaker 04:
grievance procedure remedies on the retaliation claim with within the prison

[00:01:54] Speaker 00:
I think he filed some grievances, but this argument and the counsel briefing only concerned the excessive force claims.

[00:02:04] Speaker 00:
My client has submitted proposed briefing on his other claims, including his retaliation claims, I believe.

[00:02:12] Speaker 04:
But did he grieve all of the assaults that he alleges occurred?

[00:02:21] Speaker 00:
I think based on the complaint, he filed grievances on some of them and there was retaliation on others.

[00:02:28] Speaker 04:
So is your answer there might be some unexhausted claims?

[00:02:35] Speaker 04:
I guess the reason I'm asking the question is that the Supreme Court has told us that if we're going to

[00:02:40] Speaker 04:
consider an extension of the Bivens rule, we need to consider what other alternatives were available to the plaintiff besides extending a Bivens cause of action to this claim.

[00:02:52] Speaker 00:
I see it.

[00:02:53] Speaker 00:
Some courts have considered these special factors, but in this court, Watanabe and other courts have held that

[00:03:02] Speaker 00:
Alternative remedial programs are to be considered at step two and we only get to step two of the Bivens analysis if the court finds that there is a new Bivens context and we argued that there is no new Bivens context So we don't need to get to step two in this case, but doesn't change our decision and chambers control the resolution of that first question It does which is why?

[00:03:29] Speaker 00:
We are petitioning for this panel to vote to hear this case en banc to reconsider chambers.

[00:03:35] Speaker 04:
To reconsider chambers.

[00:03:37] Speaker 04:
So your real complaint is with chambers.

[00:03:39] Speaker 04:
And the question is whether or not this is a good vehicle to revisit chambers.

[00:03:45] Speaker 00:
That's right.

[00:03:45] Speaker 00:
And our view is that chambers erred by misapplying the Abbasi factors.

[00:03:50] Speaker 02:
So what is this best argument that you have that we should recommend to our colleagues that chambers be revisited en banc?

[00:04:00] Speaker 00:
The best argument is that chambers misapplied the Abbasi factors at step one.

[00:04:06] Speaker 00:
There is no meaningful difference between Mr. Skinner's and Mr.

[00:04:11] Speaker 00:
Chambers's claims and the claims in Carlson, there is no meaningful difference in the constitutional right at issue because they both involve the Eighth Amendment's prohibition against cruel and unusual punishment.

[00:04:25] Speaker 00:
The legal standards also do not have a meaningful difference.

[00:04:28] Speaker 00:
Those who use force maliciously and statistically to cause harm satisfy deliberate indifference, which only requires knowledge and disregard of a risk to inmate safety.

[00:04:39] Speaker 02:
What if we were to define

[00:04:41] Speaker 02:
Decide that this is a different context then what will we do at the next step?

[00:04:46] Speaker 00:
We make no isn't that where you get to judge Tallman's question about special factors We're making no argument on step two, but there are good there are good reasons why even if this is a new context that The claim should be extended what are those?

[00:05:07] Speaker 00:
We make no argument as the step two

[00:05:10] Speaker 04:
But don't we have to consider that before we extend?

[00:05:15] Speaker 00:
Yes, if this court finds that there is new context, it would have to consider that.

[00:05:20] Speaker 00:
And our argument is that there is no new context here.

[00:05:23] Speaker 04:
OK, but Chambers forecloses that argument, does it not, by saying it is a new context?

[00:05:30] Speaker 00:
Yes, Chambers currently forecloses that.

[00:05:32] Speaker 00:
OK.

[00:05:36] Speaker 04:
I guess the thing that concerns me about your position is that, I mean Bivens has been around for a long time and Congress has not seen fit to do what it did when it adopted Section 1983 to approve these types of claims against state officers.

[00:05:56] Speaker 04:
I mean isn't this kind of the,

[00:05:58] Speaker 04:
paradigmatic example of where the court should defer to Congress, the question of whether or not to create a remedy, which clearly has major financial ramifications to the federal government based on what we see happening in the 1983 cases.

[00:06:18] Speaker 00:
I don't think so.

[00:06:20] Speaker 00:
because this is not a new Bivens context.

[00:06:22] Speaker 00:
And courts have continued to recognize Bivens claims in many different cases, including this court in Guantanamo Bay.

[00:06:31] Speaker 03:
The Supreme Court told us that unless the claim is pretty much identical to the three, it approves that we may as well forget that there isn't going to be a new Bivens claim.

[00:06:44] Speaker 00:
The standard isn't whether the claims are identical.

[00:06:47] Speaker 00:
It's whether there is a meaningful difference.

[00:06:50] Speaker 02:
I agree.

[00:06:51] Speaker 02:
Why do you think there's not a meaningful difference?

[00:06:53] Speaker 00:
There's not a meaningful difference.

[00:06:55] Speaker 02:
Basically a medical malpractice claim and this claim of cruel punishment.

[00:07:01] Speaker 02:
Your client claims that he was beaten.

[00:07:04] Speaker 00:
That's right.

[00:07:04] Speaker 00:
I wouldn't characterize it as malpractice.

[00:07:08] Speaker 00:
Both claims have... I'm just using a shorthand.

[00:07:12] Speaker 02:
You can characterize it as you want.

[00:07:14] Speaker 02:
Inadequate medical care.

[00:07:16] Speaker 02:
Why is that not meaningfully different is what I'm trying to get at, counsel.

[00:07:19] Speaker 00:
It's not meaningfully different because the legal standards are not meaningfully different, as I explained, and also the facts.

[00:07:26] Speaker 00:
Both claims involve prisoner mistreatment claims.

[00:07:29] Speaker 00:
Officers whose overconduct harmed the health of an inmate.

[00:07:32] Speaker 00:
In Carlson, you had prison officers using a respirator known to be defective

[00:07:38] Speaker 00:
and using contraindicated drugs that made the plaintiff's condition worse.

[00:07:42] Speaker 02:
That's why I characterize it shorthand as malpractice, right?

[00:07:45] Speaker 02:
It's inadequate medical care.

[00:07:49] Speaker 00:
Yes.

[00:07:49] Speaker 02:
So I didn't mean to interrupt you, but that's why I'm putting that in that basket.

[00:07:52] Speaker 02:
And this seems to me a very different context.

[00:07:55] Speaker 02:
I didn't mean to interrupt.

[00:07:56] Speaker 02:
You're telling me why you think it's not a different context.

[00:07:59] Speaker 00:
Yes, but Carlson never actually described the plaintiff's claims as deliberate indifference claims, and it never limited the claims

[00:08:07] Speaker 00:
And it never limited its holding to medical needs claims, much less claims specific to that.

[00:08:17] Speaker 00:
And it never foreclosed claims based on excessive force.

[00:08:20] Speaker 02:
Well, whether it did or not, we now know that the Supreme Court has, that's what Judge Akut is calling your attention to, right?

[00:08:25] Speaker 02:
We now know that the Supreme Court has said we really have to look at if there is any reason, right?

[00:08:30] Speaker 02:
And at step one, we're looking at the different context.

[00:08:33] Speaker 02:
And you've been clear that that's your

[00:08:35] Speaker 02:
You're putting your eggs in that basket, so I'm trying to probe why it is you think those are not different, why the contexts are not different.

[00:08:43] Speaker 02:
And what you're telling me is you think that the legal standard doesn't differ as opposed to the context in which the claim arises.

[00:08:50] Speaker 00:
Yes, that's right.

[00:08:50] Speaker 00:
I see that.

[00:08:51] Speaker 00:
I have two minutes left, but I'll answer the question.

[00:08:53] Speaker 00:
So they are different, but they are not meaningfully different.

[00:08:56] Speaker 00:
And that's the standard under Abbasi.

[00:08:58] Speaker 04:
But what does meaningfully mean?

[00:09:00] Speaker 04:
I just cringe when I hear that word, because I have yet to see a court tell me what the definition of meaningful difference is.

[00:09:10] Speaker 03:
And especially although Judge Christian says it's not identical, I think the Supreme Court comes pretty close to saying it has to be on all fours.

[00:09:20] Speaker 02:
They said we're supposed to ask if there is any reason.

[00:09:23] Speaker 02:
It's it's pretty strong language.

[00:09:26] Speaker 03:
It's an officer a different level of superiority is enough to be a meaningful difference.

[00:09:31] Speaker 03:
So that's pretty tough to argue against.

[00:09:34] Speaker 00:
Yes.

[00:09:35] Speaker 00:
But you only get there if you get to step two at step one the operative tests under a bossy.

[00:09:41] Speaker 00:
which still remains good law, is whether it's meaningfully different.

[00:09:45] Speaker 00:
And unfortunately, Judge Talman, the Supreme Court has, I don't believe, provided specific guidance on that point.

[00:09:52] Speaker 04:
Believe me, I can't find an answer to that question.

[00:09:55] Speaker 03:
You want to save the rest of your time?

[00:09:58] Speaker 00:
Yes.

[00:09:58] Speaker 00:
Thank you.

[00:10:16] Speaker 01:
Good morning, Your Honors.

[00:10:17] Speaker 01:
If it may please the Court, John Korvick on behalf of the United States, appearing as amicus in support of defendant's appellees.

[00:10:25] Speaker 01:
To begin, I want to focus on a couple points that were made by my colleague during his argument.

[00:10:30] Speaker 01:
First, he argues that there is no meaningful difference between the facts in Carlson and the facts here.

[00:10:37] Speaker 01:
However, he supports no case law in support of the theory that an excessive force claim presents the same context, certainly not after Egbert v. Boulay.

[00:10:46] Speaker 01:
One case that comes up in the appellant's brief on reply, Juan Tanabe, I think, is somewhat instructive here in terms of how this court, post Egbert, has examined what our meaningful difference is.

[00:10:59] Speaker 01:
And in Juan Tanabe, we see that while there was an argument made that Carlson is not limited to a medical deliberate indifference claim,

[00:11:08] Speaker 01:
We do see that this court, post Egbert, does.

[00:11:11] Speaker 01:
And in Watanabe, at each of the various non-exhaustive factors that we see when determining whether or not something is a new context from Abbasi, this court has emphasized the medical nature of those claims.

[00:11:23] Speaker 01:
So first, it noted that both were prison nurses.

[00:11:26] Speaker 01:
In our case here, there is no prison nurse that's involved, but rather line correction officers.

[00:11:32] Speaker 01:
Second, it said that the constitutional right at issue was, quote,

[00:11:35] Speaker 01:
the right under the Eighth Amendment to be free from cruel and unusual punishment through deliberate medical indifference, unquote.

[00:11:43] Speaker 01:
As to the third factor from Abbasi, it said that both pointed to, quote, acts and omissions, unquote, that are deliberately indifferent to Watanabe's serious medical condition, again, focusing on the fact that it's a medical condition.

[00:11:58] Speaker 01:
Here, there is no claim as to deliberate medical indifference.

[00:12:02] Speaker 01:
For point four, looking at judicial guidance

[00:12:05] Speaker 01:
specifically focuses again on how the officers responded to serious medical conditions.

[00:12:10] Speaker 01:
And it focused again on how both were BOP medical staff.

[00:12:15] Speaker 01:
None of those facts that were found in Watanabe or found in Sennard, the two key cases where this court has allowed Bivens to continue parallel to Carlson, none of those facts are present here.

[00:12:27] Speaker 04:
So is it significant that we're dealing

[00:12:31] Speaker 04:
with a different constitutional amendment in a Bivens claim, which, as I understand it, is a Fourth Amendment excessive force claim.

[00:12:42] Speaker 01:
So yes, it is relevant that there's a separate amendment, but I would say this.

[00:12:46] Speaker 01:
Carlson does have an Eighth Amendment claim, but as Your Honor points out, not an excessive force.

[00:12:51] Speaker 01:
So there's two different parts to that.

[00:12:53] Speaker 01:
The fact that Bivens came under the Fourth Amendment outside of the incarcerated context is a meaningful difference.

[00:12:58] Speaker 01:
That presents a new context from this to Bivens.

[00:13:01] Speaker 04:
So had the plaintiff here alleged excessive force under the Fourth Amendment, would he have a legitimate Bivens claim against the correctional officers?

[00:13:17] Speaker 01:
know, Your Honor, for several reasons.

[00:13:19] Speaker 01:
First off, Eighth Amendment, because he's in an incarcerated context, would have been the appropriate method to challenge the excessive force.

[00:13:26] Speaker 01:
But beyond that, we still would have the same problems we have here versus Guantanamo.

[00:13:32] Speaker 01:
We have a corrections officer versus a law enforcement officer outside.

[00:13:37] Speaker 01:
They operate under a different statutory scheme, the incarcerated context versus out of incarcerated context.

[00:13:45] Speaker 01:
the types of officers are different, the types of defendants are different, and I still believe that under the Supreme Court's more recent Egbert v. Boulay holding, we would have a new context.

[00:13:56] Speaker 02:
So we'd have a situation where there's no, outside of a grievance and perhaps a disciplinary proceeding, this does leave an inmate in a federal facility or who's looking at a federal defendant with really no recourse, it seems.

[00:14:15] Speaker 02:
which is, of course, troubling, so we certainly pause at that.

[00:14:18] Speaker 02:
If this prisoner who's complaining that the guards had slammed his fingers, and that was one of his complaints, right, that they slammed his fingers, I think, in the food tray, he would have no claim, I think, under the government's view for that tortious conduct, for the battery.

[00:14:34] Speaker 02:
But he would have a claim if they took him to the infirmary or were slow getting him there or somehow didn't properly treat the injury.

[00:14:42] Speaker 02:
Is that right?

[00:14:43] Speaker 01:
Well, so I'd say two points.

[00:14:44] Speaker 01:
Certainly when it comes to Bivens, there is the possibility, I mean, that's obviously a hypothetical, depending on the facts, there could be a situation where Bivens might extend under this court's precedent now with Guantanamo and Stenard.

[00:14:56] Speaker 01:
We would obviously have to see more facts to know it.

[00:14:58] Speaker 02:
I figured out the answer to my question is yes, and I think you're pivoting away from it.

[00:15:04] Speaker 01:
Or let me say this.

[00:15:07] Speaker 01:
If your honors.

[00:15:08] Speaker 02:
Potentially.

[00:15:12] Speaker 02:
So he would have.

[00:15:17] Speaker 01:
There's a number of different claims that

[00:15:19] Speaker 01:
that someone in Mr. Skinner's context maybe could have, provided that they met their related obligations.

[00:15:26] Speaker 02:
When you say in his context, now you're going back to somebody who's complaining about being beaten in prison.

[00:15:30] Speaker 02:
Or even to your- If you could just hang on to that one.

[00:15:34] Speaker 02:
Are you referring to that person having many claims?

[00:15:37] Speaker 02:
I've mentioned one, our hypothetical now being someone who complains that he's been beaten by a guard in a federal prison.

[00:15:44] Speaker 02:
And what you're telling me, I think, is that he would have, you know, the administrative grievance process, which might result in a disciplinary action against the guard.

[00:15:53] Speaker 02:
Is that?

[00:15:54] Speaker 01:
So there's two points.

[00:15:55] Speaker 02:
Are there others?

[00:15:56] Speaker 01:
So yes.

[00:15:56] Speaker 01:
So the Federal Tort Claims Act would provide a mechanism for a plaintiff in that circumstance to be able to get monetary damages to make themselves whole.

[00:16:05] Speaker 01:
But in terms of the focus of Bivens, Bivens is meant to disincentivize a federal official from

[00:16:13] Speaker 01:
violating someone's constitutional rights.

[00:16:15] Speaker 01:
And within this context, I think the most serious is an excessive force claim is something that can lead to criminal punishment to the officer.

[00:16:22] Speaker 02:
I'm trying to get you to answer a different question, but you don't seem to want to answer it.

[00:16:25] Speaker 02:
I fully appreciate the difference between the tort claim, and I appreciate that answer.

[00:16:28] Speaker 02:
But if he's not trying to mitigate his own injury in the form of money damages, but he wants to make sure he's going to be protected from this guard, is it not an avenue for him?

[00:16:38] Speaker 02:
And of course, this is important for our post-Egbert analysis, right?

[00:16:42] Speaker 02:
Is it not an avenue for him to pursue a grievance that might result in a disciplinary procedure?

[00:16:47] Speaker 01:
Oh, yes.

[00:16:47] Speaker 01:
I apologize, Your Honor.

[00:16:48] Speaker 01:
I think I misunderstood the question initially.

[00:16:50] Speaker 01:
It wasn't intended to be a trick question.

[00:16:51] Speaker 01:
No.

[00:16:51] Speaker 01:
Yes.

[00:16:51] Speaker 01:
He could, of course.

[00:16:52] Speaker 01:
There's the administrative remedy program.

[00:16:53] Speaker 01:
He can file a grievance that would require the Office of Inspector General to investigate.

[00:16:57] Speaker 01:
Yes, absolutely.

[00:16:58] Speaker 01:
That's something that could be done.

[00:16:59] Speaker 02:
Okay.

[00:16:59] Speaker 02:
So that's a problem if we're going to be extending this to a new context.

[00:17:03] Speaker 02:
And opposing counsel hasn't argued otherwise.

[00:17:05] Speaker 02:
He's not getting to step two.

[00:17:06] Speaker 01:
Correct.

[00:17:07] Speaker 02:
But that's something we would take into account at step two.

[00:17:09] Speaker 01:
Yes, absolutely.

[00:17:10] Speaker 01:
Yes, absolutely, Your Honor.

[00:17:12] Speaker 01:
Apologies.

[00:17:12] Speaker 04:
So your position is his alternative remedies include grievances, the Federal Tort Claims Act, or the third one.

[00:17:22] Speaker 04:
I can't remember what it was.

[00:17:23] Speaker 02:
Was there a third one?

[00:17:24] Speaker 01:
So special factors that would count.

[00:17:27] Speaker 01:
If we got past step one, the special factors that we think would be most pertinent.

[00:17:31] Speaker 02:
That's a different question.

[00:17:33] Speaker 02:
The question is,

[00:17:34] Speaker 02:
We're trying to figure out follow-up on your question about the other avenues that are available federal tort claims act and judge Tom I just asked you are just are there there's two avenues or is there a third?

[00:17:44] Speaker 01:
There's the federal tort claims act.

[00:17:45] Speaker 01:
There's the administrative grievance process.

[00:17:47] Speaker 04:
I mean, there's of course criminal liability as well Correct Correct, okay Thank you.

[00:17:56] Speaker 01:
So another point that I want to address from opposing counsel's argument is he asserts that there is a conflict here with fields and with read and

[00:18:04] Speaker 01:
First with fields, the one point that's on appeal here is that first step.

[00:18:10] Speaker 01:
And under the first step, fields had assumed that there was, in fact, a new context.

[00:18:15] Speaker 01:
That case dealt with special factors after the fact, and that's something that we heard both in the opening brief as well as hear an argument that that is not something that Mr. Skinner is arguing is pertinent here.

[00:18:25] Speaker 01:
They're putting all their chips in the new context basket.

[00:18:28] Speaker 01:
and fields did not hold and in fact did not address whether or not this was a new context, assuming it was so because the plaintiff in that case had conceded it.

[00:18:39] Speaker 01:
As for Reed, while there is a difference between Reed and here, that unpublished decision is not current law of this circuit post-chambers, and chambers is consistent with every circuit that has examined the issue.

[00:18:50] Speaker 01:
Every single circuit court that has examined whether Eighth Amendment excessive force claims present a new context have held the same as chambers.

[00:18:59] Speaker 01:
And that includes this court again in chambers afterwards in Hunt.

[00:19:03] Speaker 01:
Every single circuit court agrees on this issue.

[00:19:06] Speaker 02:
And with that- You've mentioned that a couple of times.

[00:19:09] Speaker 02:
Can I get you to shift gears and answer the question about whether you think these claims are all exhausted?

[00:19:15] Speaker 02:
So- Is this claim exhausted is what I really should- The excessive force claims.

[00:19:22] Speaker 01:
So we are not making an argument that he did not attempt to exhaust the Eighth Amendment excessive force claims.

[00:19:29] Speaker 01:
But regardless of whether or not he exhausted it, there is no cognizable Bivens claim under not only this court's holding in chambers, but we believe that's correct under Egbert.

[00:19:37] Speaker 03:
To follow up on Judge Christin, you don't know the answer.

[00:19:40] Speaker 03:
You haven't addressed it, but is there an answer?

[00:19:44] Speaker 01:
The short answer is I don't know if because it was not something that formed the basis.

[00:19:50] Speaker 01:
You have to recall, we are appearing as amicus.

[00:19:53] Speaker 01:
The defendants in this case have not been served.

[00:19:55] Speaker 01:
And I want to be very cautious so that I'm not going beyond what we've been asked to do as amicus because I do not want to preclude any arguments that an individual defendant might need to make should they be served.

[00:20:04] Speaker 04:
Why are you here as amici rather than representing the BOP officers?

[00:20:11] Speaker 01:
So the BOP officers were not served.

[00:20:15] Speaker 01:
We do not want to get in a situation that our appearance is construed as a waiver of potential service arguments that they would have.

[00:20:21] Speaker 01:
And they also have not, and just to give a little bit more detail how this would work, if an individual officer is sued under Bivens, there is a process that both they have to request our assistance.

[00:20:31] Speaker 04:
And the agency has to certify that.

[00:20:32] Speaker 01:
Exactly.

[00:20:33] Speaker 01:
And because they've not, I've not been given authorization by those individual defendants to represent them, I'm not in a position to be able to speak on their behalf or to potentially preclude arguments that they or their chosen counsel would make.

[00:20:44] Speaker 03:
Thank you very much for your arguments.

[00:21:12] Speaker 00:
I'd like to reply to just two points that my friend on the other side made.

[00:21:17] Speaker 00:
The first is his characterization of the central issue in this appeal.

[00:21:22] Speaker 00:
There is a pending petition for initial hearing on Bonk before this panel and

[00:21:29] Speaker 00:
We argue that there is a direct conflict between chambers and fields and all of the other cases that have permitted 8th Amendment excessive force claims to go for decades that the government ignores.

[00:21:45] Speaker 03:
Opposing counsel says fields assume that it was a new context.

[00:21:50] Speaker 03:
Is that wrong?

[00:21:51] Speaker 03:
Do you disagree?

[00:21:53] Speaker 00:
That's right, but under the standard of

[00:21:56] Speaker 00:
Rule 40, on bond consideration is appropriate if there is a panel decision that conflicts with a authoritative decision from another U.S.

[00:22:05] Speaker 00:
Court of Appeals.

[00:22:06] Speaker 00:
And here, there is a direct conflict in the outcome.

[00:22:09] Speaker 00:
Chambers held that Bivens claims, these Bivens claims are not viable and Fields held to the contrary.

[00:22:16] Speaker 02:
What year was Fields decided?

[00:22:19] Speaker 00:
2024.

[00:22:22] Speaker 03:
A year over time, please wrap up.

[00:22:25] Speaker 00:
The final thing I'll say is about the factors chambers misapplied each and every factor a bossy factor that it considered and We believe that's a reason why this court should reconsider the case on bonk.

[00:22:39] Speaker 03:
Thank you in the case of Jesse Skinner versus Lee is submitted and will next